Judges Reject Challenge To Foxwoods License

Patricia Daddona Day Staff Writer, Consumer and Energy

The Pennsylvania Supreme Court has ruled that gaming regulators properly granted slot-machine licenses to the owners of Foxwoods Resort Casino and another developer to build casinos in Philadelphia.

In a ruling issued late Tuesday, four of five judges hearing the case rejected competitor Riverwalk Casino's challenge to the licenses issued by the Pennsylvania Gaming Control Board. The state Gaming Act vests the Supreme Court with exclusive jurisdiction to consider appeals of decisions by the board involving slot-machine licenses.

Foxwoods' development arm, Philadelphia Entertainment and Development Partners LP, received its license in December, as did Neil G. Bluhm, a developer from Chicago investing in the proposed Sugarhouse Casino, which goes by the name HSP Gaming LP.

The Mashantucket Pequot Tribal Nation has proposed building a $986 million casino with 3,000 slot machines on the Philadelphia riverfront and, if market demand and legislation allow, expanding the number of slots in two later phases.

Riverwalk had asked the court to vacate the gaming board's decision, alleging several procedural violations that included improperly meeting in private to deliberate on the proposals and improperly giving board members who had recused themselves with regard to certain applications the potential to unduly influence the final decision on the remaining applications.

In ruling for the defendants, Chief Justice Ralph J. Cappy agreed with the gaming board that Riverwalk's case hinged on the court finding that its project is superior to those that won licenses, a finding that would require “reweighing” the factors already considered by the gaming board.

“We will not supplant the board's discretion” by re-evaluating the merits of the licensing decision, Chief Justice Cappy wrote. “Riverwalk has failed to establish that the board committed an error of law or that the board acted arbitrarily or in capricious disregard of the evidence.”

Foxwoods' public relations spokeswoman Maureen Garrity acknowledged that a number of hurdles remain for the project but said this decision helps developers stick to its timetable.

“This is good news for us,” said Garrity. “What this does is ... make the gaming control board's decision final. We believe it's possible to break ground this summer and we're hopeful that we can.”

If that happens, the casino could open 20 months later, in 2009, Garrity said.

The Mashantuckets still need planning commission approval, which could come at that board's next meeting, and city council approval, which cannot occur until September because the council's not in session until then, Garrity said. The absence of a council decision will “not necessarily” delay a groundbreaking, she said.

The tribe also has petitioned the Pennsylvania Supreme Court to overturn council actions that have delayed the project, she said.

“We're not alone in this fight,” she added. “Sugarhouse has also been facing opposition but we're making inroads in the community and we believe that the people that do turn out are the vocal minority.”

Gaming Control Board Chairman Tad Decker hailed the court's decision as one that will justly move state gaming forward.

“The Court's decision is another significant step toward fulfilling the Legislature's vision to establish legalized gaming in the city of Philadelphia and producing tax dollars and jobs that will benefit all Pennsylvanians,” Decker said.

A dissenting legal opinion by Justice Ronald D. Castille argued for remanding the Riverwalk appeal to the gaming board.

The judiciary's role in deciding the case under new Pennsylvania law is confined to finding the original decision “arbitrary,” with “capricious” disregard of the evidence, he wrote. The procedural complaints alleged by Riverwalk are too numerous to leave to such a narrow decision, he wrote.

The gaming board had rejected not only the Riverwalk proposal but also Donald Trump's casino company, Las Vegas-based casino developer Pinnacle Entertainment Inc.

The Riverwalk group, which is led by investors in the Planet Hollywood hotel and restaurant chain, could not be reached for comment.
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